Super PACs driving the midterms unsurprisingly

With a little over a month to go before the midterm elections, Super PACs just set a dubious record: with total independent expenditures at $549 million and counting, 2018 has passed 2014 as the midterm election with the most Super PAC spending in history. And, astonishingly, millions more is already being spent by dark money groups on the presidential election that will not occur until 2020.

$549 million is about the budget of a school district in a large U.S. city, like San Antonio, Texas. The irony is, of course, that if we were to fund a school district with that amount of money, we’d be making people smarter; instead, with the Super PAC money mostly being spent on 30-second attack ads and incideniary social media posts, we’re instead using it to make people dumber.

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But the eye-popping numbers do more than annoy the public; they also prevent politicians from being “dependent on the people alone,” in Madison’s wonderful phrase. That is because in order to compete in the modern era, legislators must always be fundraising—and increasingly, they are fundraising in huge amounts from a small group of very wealthy donors, to run-up the score of unlimited contributions to Super PACs that have been permissible after Citizens United.

What can be done to break the cycle? Many judges and legal commentators have expressed their displeasure with the post-Citizens United world, but judges who care about the original meaning of the Constitution—like those in the majority in Citizens United—may want to take a second look at their rulings that opened these floodgates. That’s because what Hamilton, Madison, and the founding gang likely would not have thought unlimited donations to Super PACs was a good idea. Encouragingly, those originalist judges will soon have a chance if a case now moving along in Alaska reaches the Supreme Court.

What originalist judges will be able to consider thanks to the Alaska case is the original meaning of “corruption.” Eliminating corruption was a goal that pre-occupied the Framers, and the Supreme Court has rightly recognized that campaign finance regulations are permissible if they seek to prevent politicians from entering into corrupt arrangements. But the problem is that many judges have thought about corruption only in the narrowest of terms.

Judges of all political stripes have been concerned about eliminating individualized corruption, like politicians who take improper payments for policy favors. The Framers surely wanted us to stop outright bribery, and we’ve done admirable job of that for many decades. The buying of politicians’ votes by slipping them briefcases of cash is, thankfully, not nearly as common in the U.S. as it is in some other countries.

But there is another flavor of corruption called institutional corruption, and, unfortunately, our Framers would be much less proud of what we’re doing to prevent this behavior. Institutional corruption occurs when an institution becomes dependent on plainly improper influences, and our Framers were particularly concerned that this could happen to the Congress. Thus, the Constitution sets up a delicate system of checks and balances to try and ensure that large concentrations of wealth or private interests would have a hard time capturing our government and that our institutions remain uncorrupted.

Unfortunately, after Citizens United, many of those checks and balances have begun to break down, and that decay has accelerated in the wake of unlimited political donations by very wealthy individuals. Lower courts have issued decisions permitting donors to give unlimited amounts of money to nominally independent groups because judges interpret Citizens United as saying that campaign finance regulations may prevent only individual corruption—that is, bribery—and therefore no limits may be placed on technically independent groups like Super PACs, because there is no risk of direct bribery without donations made directly to political campaigns.

In the Alaska anti-corruption case, Pulitzer Prize-winning historian Jack Rakove testified in detail last week that ignoring the interest in preventing institutional corruption is ahistorical. With that critical evidence now in the record in Alaska, a court finally has the tools it needs to revisit this string of erroneous decisions and permit the government to combat institutional corruption by limiting the amount of money that Super PACs may receive.

In all the uncertainty about the results of upcoming elections, one thing seems inevitable: without a change in the law, spending records by Super PACs will continue to be smashed every election cycle. So, to improve our future, we may need to look back—way back, to the wisdom from our Framers. It’s worked for us before, and judges shouldn’t hesitate to do it yet again.